Opinion

Merritt, Kenneth v. Flextronics, Inc.

  • 2022 TN WC 31
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 4, 2022
Status
Published
On the bench
Allen Phillips
Cited by
0 cases

The opinion

FILED

Apr 04, 2022

08:17 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

KENNETH MERRITT, ) Docket No. 2020-08-0920

Employee, )

v. )

FLEXTRONICS, INC., ) State File No. 49660-2020

Employer, )

and )

TRAVELERS INDEMNITY CO., ) Judge Allen Phillips

Carrier. )

COMPENSATION ORDER DENYING BENEFITS

Mr. Merritt requested permanent disability and medical benefits for injuries to his

hands. Flextronics denied his claim. The Court considered the dispute at a Compensation

Hearing on March 11, 2022, and for the following reasons, denies Mr. Merritt’s request.

History of Claim

Mr. Merritt worked for Flextronics as a computer repair technician. In Summer

2020, Flextronics had an influx of business that caused Mr. Merritt to work many extra

hours. He described working up to twelve hours per day, seven days a week. Mr. Merritt

said this increased workload caused pain in his hands from using a screwdriver to remove

thousands of screws on the computers he repaired.

Mr. Merritt first noticed the pain on July 6. It worsened the next week and, by the

third week, became so bad that he felt he needed medical attention. He said he told his

supervisor about his pain; Flextronics contended he did not say it was work-related. Thus,

Flextronics did not provide Mr. Merritt with a panel of physicians.

Mr. Merritt ultimately sought his own treatment with orthopedic surgeon Dr.

Christian Fahey, whom he first saw on July 28, 2020. Dr. Fahey recorded that Mr. Merritt

had pain in his hands for the last six months, but it had gotten severe in the last two weeks.

Mr. Merritt related his pain to his work. Dr. Fahey diagnosed possible tenosynovitis and

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recommended physical therapy.

At that time, Dr. Fahey also responded to a request from Mr. Merritt’s short-term

disability carrier regarding any work relation of Mr. Merritt’s condition. In his deposition,

Dr. Fahey described his response as that he did not “find a traumatic injury” and could not

say that Mr. Merritt’s condition was more than fifty percent caused by his job.

Dr. Fahey took Mr. Merritt off work for two weeks. Mr. Merritt presented the off-

work excuse, and Flextronics completed a First Report of Injury and provided a panel of

physicians that included Dr. Fahey. Mr. Merritt chose to continue treating with him.

Mr. Merritt returned to Dr. Fahey on August 11, and the doctor noted an odd “sweat

pattern” on Mr. Merritt’s right hand, leading him to believe Mr. Merritt might have carpal

tunnel syndrome. However, Dr. Fahey thought Mr. Merritt’s complaints of pain on the back

of his hand were inconsistent with that diagnosis. Still, he ordered a nerve test. Dr. Fahey

testified that at that time he still believed Mr. Merritt’s condition was not work related and

he told Mr. Merritt that at the time.

The nerve test revealed findings that Dr. Fahey called “slightly weird,” but still

“abnormal.” He added the test findings were “not bad” and he did not think surgery would

help Mr. Merritt. He instead recommended monitoring the situation.

Mr. Merritt disagreed with that recommendation. He believed that Dr. Fahey should

have done something other than merely watching his condition. He also believed Dr.

Fahey’s treatment recommendations constituted medical malpractice, so he sent the doctor

a letter advising him of his intent to file a lawsuit.1 Despite this, he returned to Dr. Fahey

on August 27, stating to the doctor that he still wanted to see if he could help.

On August 27, Dr. Fahey again noted Mr. Merritt complained of pain on the back

of his hands, but he still believed the complaints were inconsistent with carpal tunnel

syndrome. He maintained the best course remained watching the condition which,

according to Dr. Fahey, greatly angered Mr. Merritt. He testified that he had to have Mr.

Merritt escorted from his office and did not see him again.

After that visit, Dr. Fahey responded “No” when Flextronics asked him if Mr.

Merritt’s condition was more than fifty percent related to his work. Flextronics then denied

Mr. Merritt’s claim on grounds of “no medical evidence of injury.”

During his deposition, Dr. Fahey testified that his understanding of current

Tennessee law is that it is “difficult, if not impossible, to claim repetitive stress injuries,

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Because of that notice, Dr. Fahey had his own counsel present during his deposition. That counsel and the parties

here contacted the Court during the deposition for its ruling on several evidentiary objections having no bearing on

the issues in this case.

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particularly in your hand.” Dr. Fahey also testified his understanding of current law

requires that, “you have to have more than 50% likelihood” of a work relation. He said that

work relation must stem “from a traumatic injury like a fall to be compensable” and not

the result of “a repetitive series of events.” Regardless, he maintained on multiple occasions

during his deposition that Mr. Merritt’s condition was not greater than fifty-percent related

to his work at Flextronics.2

When Flextronics denied his claim, Mr. Merritt sought treatment on his own from a

rheumatologist and two other orthopedic surgeons. He offered their medical records, and

Flextronics objected to their admissibility as hearsay. The Court marked the records for

identification only and sustained Flextronics’s objection.

Mr. Merritt first saw orthopedic surgeon Dr. Michael Hood. He later completed a

Standard Form Medical Report for Industrial Injuries (C-32), in which he said,

“employment activity,” specifically repetitive activity, was more likely than not the cause

of Mr. Merritt’s carpal tunnel syndrome. He did not give a permanent impairment rating.

Mr. Merritt provided that C-32 to Flextronics in 2021, but it did not contain a copy of the

doctor’s qualifications or any of his medical records.

Mr. Merritt also saw orthopedic surgeon Dr. Rommel Childress, who also

completed a C-32 form stating Mr. Merritt’s carpal tunnel syndrome was caused by

“exposure to repetitive and tedious activities.” He described those activities as working on

computers twelve-hour days for seven days a week. Dr. Childress said Mr. Merritt’s

employment was more likely than not the cause of his carpal tunnel syndrome, and that

Mr. Merritt had an eight percent permanent partial impairment to the body. Mr. Merritt

filed a copy of that C-32 with the Court and served it on Flextronics on February 28, 2022,

twelve days before the hearing. The form did not contain Dr. Childress’s qualifications or

his records.

Mr. Merritt offered both C-32 forms, and Flextronics objected to them on grounds

that they did not satisfy the statutory requirements for admission. The Court marked the

forms for identification only and addresses their admissibility below. Flextronics also

objected to the medical bills from Drs. Hood and Childress that Mr. Merritt offered on

hearsay grounds. The Court sustained that objection.

Mr. Merritt testified he did not work from July 28 until October 23, 2020, and he

requested temporary disability benefits for that period. He also asked for an award of eight-

percent permanent partial disability based on Dr. Childress’s opinion in the C-32 and future

medical benefits. Mr. Merritt made many arguments regarding Dr. Fahey’s causation

2

Dr. Fahey’s deposition transcript exceeded 250 pages. The Court has reviewed the entire deposition but

confines discussion to the relevant issues regarding causation of Mr. Merritt’s injuries. The majority of Mr.

Merritt’s cross-examination centered on his complaints regarding Dr. Fahey’s treatment recommendations

and his perception of his attitude.

3

opinions and the treatment he recommended. Those arguments centered on the alleged fact

that Dr. Fahey’s attitude toward him changed once Dr. Fahey decided his injuries were not

work-related. He maintained he had no hand problems before Summer 2020 and argued

against Flextronics’s proof as to the nature of his work.

Specifically, Flextronics offered the testimony of a human resources representative

who questioned the volume of Mr. Merritt’s work in Summer 2020. However, she admitted

she did not actively participate in direct supervision of employees and that she has

responsibilities over several hundred. Flextronics introduced payroll records that it

contended showed Mr. Merritt’s hours did not appreciably increase, as he claimed.

Flextronics also offered evidence that Mr. Merritt was the subject of disciplinary

actions in 2020 for poor performance, including subpar production at the same time he

claimed an increased workload. It also pointed out Mr. Merritt has a pending lawsuit

against the short-term disability carrier for failing to pay non-work-related short-term

disability benefits for the same time he is claiming temporary total disability.

Finally, Flextronics introduced proof that Mr. Merritt had worked two other

computer/electronics repair jobs since leaving its employment and that his current job pays

fifty percent more per hour than his pre-injury wage.

Findings of Fact and Conclusions of Law

Mr. Merritt represented himself, as is his right. However, the Court cannot excuse

him from complying with the same substantive and procedural rules that represented

parties are expected to observe. Lindsey v. Kellogg Co., 2022 TN Wrk. Comp. App. Bd.

LEXIS 6, at *7 (Feb. 17, 2022).

Here, Mr. Merritt must prove all elements of his claim by a preponderance of the

evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2021). To prevail, he must first prove the

cause of his injuries by expert medical testimony. Hart v. Thyssen Krupp Elevator Corp.,

2020 TN Wrk. Comp. App. Bd. LEXIS 67, at *14 (Nov. 25, 2020). That testimony must

show his injuries arose primarily out of his employment, which means, to a reasonable

degree of medical certainty, that his work at Flextronics contributed more than fifty percent

in causing the injuries. “Shown to a reasonable degree of medical certainty” means that the

work was more likely than not the cause. See Tenn. Code Ann. § 50-6-102(14)(A)-(D).

Flextronics offered Dr. Fahey’s deposition, and Mr. Merritt offered the C-32 forms

of Drs. Hood and Childress. Dr. Fahey gave his opinion that repetitive injuries are virtually

impossible to prove under the current law. That statement is incorrect; repetitive injuries,

like all others, are compensable if they are shown to arise primarily out of the employment.

Tenn. Code Ann. § 50-6-102(14). However, regardless of his mistaken belief of the law,

Dr. Fahey did state on several occasions that Mr. Merritt’s condition was not greater than

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fifty percent related to his work at Flextronics. He offered that opinion throughout his

treatment and stood by it when deposed.

Because Mr. Merritt chose him from a panel, Dr. Fahey’s causation opinion is

presumed correct subject to rebuttal by a preponderance of the evidence. See Tenn. Code

Ann. § 50-6-102(E). The Court holds Mr. Merritt did not rebut Dr. Fahey’s causation

opinion.

Specifically, neither of the C-32 forms submitted by Mr. Merritt complied with the

requirements of Tennessee Code Annotated section 50-6-235(c). Specifically, that statute

allows a party to introduce direct testimony from a physician through a written medical

report if it bears the original signature of the physician and contains the physician’s

qualifications in either the body of the report or in a supporting affidavit. Id. at (c)(1).

Further, the party seeking to use a report must provide notice of its intent to use it not less

than twenty days before the intended use. Id. at (c)(2).

In Watson v. Catlett Constr., 2018 TN Wrk. Comp. App. Bd. LEXIS 19, at *6-7

(May 18, 2018), the Appeals Board affirmed the trial court’s exclusion of C-32 forms

because they were not originals and were not accompanied by the required physician

qualifications. Likewise, in Meier v. Lowe’s Home Ctrs., 2017 TN Wrk. Comp. App. Bd.

LEXIS 68, at *9 (Nov. 2, 2017), the Board held that “substantial compliance” with section

235 is not enough; the C-32 forms must fully comply with the statutory requirements.

Here, Mr. Merritt timely provided Flextronics with Dr. Hood’s C-32, but it

contained no statement of the doctor’s qualifications. Further, the Court cannot ascertain if

it is the original.

As to Dr. Childress’s C-32, Mr. Merritt served it on Flextronics on February 28,

fewer than twenty days before the Compensation Hearing, and it does not contain Dr.

Childress’s qualifications. Thus, both C-32 forms filed by Mr. Merritt are inadmissible as

evidence.

Finally, though Mr. Merritt provided his medical records to Flextronics, and filed

them with the Court, the records standing alone are hearsay and inadmissible.

The Court finds Mr. Merritt credible. However, because he offered no admissible

medical proof that his injury arose out of his employment, the Court cannot award him the

requested benefits.

IT IS, THEREFORE, ORDERED as follows:

1. The Court dismisses the case with prejudice to its refiling.

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2. Flextronics shall pay $150.00 to the Court Clerk within five business days after this

order becomes final under Tennessee Compilation Rules and Regulations 0800-02-

21-.06 (February, 2022).

3. Flextronics shall prepare and submit to the Court Clerk a Statistical Data Form

(SD2) within ten business days of this order becoming final.

4. Unless appealed, this order shall become final thirty days after issuance.

ENTERED April 4, 2022.

______________________________________

JUDGE ALLEN PHILLIPS

Court of Workers’ Compensation Claims

Appendix

Exhibits

1. First Report of Work Injury

2. Deposition of Dr. Christian Fahey

3. Notice of Denial (Form C-23)

4. C-32 of Dr. Rommel Childress-Identification Only

5. C-32 of Dr. Michael Hood-Identification Only

6. Photograph of Mr. Merritt’s hand

7. Choice of Physician Form (C-42)

8. Transcript of Mr. Merritt’s recording of a conversation with Dr. Fahey-

Identification Only

9. Medical bills and receipts-Identification Only

10. Medical Records of Dr. Childress-Identification Only

11. Medical Records of Dr. Hood-Identification Only

12. Civil Warrant filed by Mr. Merritt against Hartford Ins. Co.

13. Mr. Merritt’s resume

14. Mr. Merritt’s payroll records at Flextronics—2020

15. Records of Short-Term Disability payments from Hartford

16. Flextronics Coaching Forms regarding Mr. Merritt

Technical Record

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Employer/Carrier’s Objection to Dr. Hood’s Form C-32

4. Request for Expedited Hearing

6

5. Protective Order Under Rule 26

6. Status Hearing Order

7. Employee Request Acceptance of Dr. Hood’s Form C-32 Carpal Tunnel Syndrome

Has Been Verified as Evidence

8. Notice of Special Appearance

9. Motion for Protective Order

10. Notice of Objection to Motion for Protective Order

11. Motion to Quash Employee’s Written Discovery

12. Response to Motion to Quash Employee’s Written Discovery

13. Order Quashing Discovery Under Tennessee Rules of Civil Procedure 26.03

14. Employee’s Motion to Compel Discovery

15. Employer/Carrier’s Response to Employee’s Motion to Compel Discovery

16. Order Denying Motion to Compel Discovery

17. Motion for Discovery

18. Response to Employee’s Motion for Discovery

19. Motion to Compel for 2nd Discovery

20. Employer/Carrier’s Response to Employee’s Motion to Compel for 2nd Discovery

21. Order Denying Second Motion to Compel Discovery

22. Motion for Scheduling Order

23. Scheduling Order

24. Motion in Limine

25. Employer/Carrier’s Motion to Continue Compensation Hearing

26. Employee Motion Disputing a Continuance of Scheduling Order

27. Order Granting Motion to Amend Scheduling Order and Amended Scheduling

Order

28. Response in Opposition to Plaintiff’s Motion in Limine

29. Order Denying Motion in Limine

30. Memorandum of Law in Support of Employee’s Motion for Summary Judgment

31. Response in Opposition to Memorandum of Law in Support of Employee’s Motion

for summary Judgment and/or Employee’s Motion for Summary Judgment

32. Post-discovery Dispute Certification Notice

33. Employer/Carrier’s Pre-Compensation Hearing Statement

34. Employee’s Pre-Compensation Hearing Statement

35. Order of Continuance

36. Order Denying Motion for Summary Judgment

37. Employer/Carrier’s Pre-Trial Brief

38. Employer’s Exhibit List

39. Employer’s Witness List

40. Employee’s Pre-Trial Brief

41. Employer/Carrier’s Objection to Dr. Childress’ Form C-32

42. Employer/Carrier’s Objection to Dr. Hood’s Form C-32

43. Employee Response to Objection to Dr. Childress’ Form C-32

44. Employee Response to Objection to Dr. Hood’s Form C-32

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CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on April 4, 2022.

Name Email Service sent to:

Kenneth Merritt, Employee X ken-merritt@msn.com

Paul Nicks, Employer’s Attorney X Pnicks@travelers.com

Jschmid6@travelers.com

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

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Compensation Hearing Order Right to Appeal:

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’

Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’

Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk

of the Court of Workers’ Compensation Claims within thirty calendar days of the date the

compensation hearing order was filed. When filing the Notice of Appeal, you must serve

a copy upon the opposing party (or attorney, if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten

calendar days after filing of the Notice of Appeal. Payments can be made in-person at any

Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the alternative,

you may file an Affidavit of Indigency (form available on the Bureau’s website or any

Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted

Affidavit of Indigency within ten calendar days of filing the Notice of Appeal. Failure to

timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of

your appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request

from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court

reporter must prepare a transcript and file it with the court clerk within fifteen calendar

days of the filing the Notice of Appeal. Alternatively, you may file a statement of the

evidence prepared jointly by both parties within fifteen calendar days of the filing of the

Notice of Appeal. The statement of the evidence must convey a complete and accurate

account of the hearing. The Workers’ Compensation Judge must approve the statement of

the evidence before the record is submitted to the Appeals Board. If the Appeals Board is

called upon to review testimony or other proof concerning factual matters, the absence of

a transcript or statement of the evidence can be a significant obstacle to meaningful

appellate review.

4. After the Workers’ Compensation Judge approves the record and the court clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party

has fifteen calendar days after the date of that notice to submit a brief to the Appeals Board.

See the Practices and Procedures of the Workers’ Compensation Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing

Order must be final and you must comply with the Tennessee Rules of Appellate Procedure.

If neither party timely files an appeal with the Appeals Board, the trial court’s Order will

become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. §

50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-

work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________ Employer

Notice is given that ____________________________________________________________________ [List

name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’

Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on

the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued

by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:

_____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

____________________________________________

__ [Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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